Today the United States Supreme Court issued a landmark 6 to 3 decision guaranteeing LGBTQ employees protection from discrimination and harassment based upon their sexual orientation and gender identity. Employers and LGBTQ advocates have been eagerly awaiting this decision for months in which the Supreme Court was asked to decide whether or not the prohibition on discrimination based upon “sex” in Title VII of the Civil Rights Act of 1964 prohibits discrimination based upon sexual orientation and/or gender identity. The majority opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts together with four other Justices, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. In holding that Title VII prohibits discrimination based upon sexual orientation and gender identity the opinion makes clear that, "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
The Supreme Court decided this issue based upon three important cases before them. The first two were based on sexual orientation. They included a case from the Second Circuit, Zarda v. Altitude Express, Inc. in which the Second Circuit had held that Title VII did prohibit discrimination based upon sexual orientation and Gerald Bostock v. Clayton County Georgia in which the 11th Circuit held that Title VII did not prohibit discrimination based upon sexual orientation. The Supreme Court’s decision today is an important one not just because it guarantees protection from discrimination for LGBTQ employees for years to come but also because in the Zarda case, President Trump directed the Department of Justice to issue a “friend of the court brief” arguing that Title VII does not protect employees from discrimination under Title VII based on their sexual orientation.
The Zarda case involved a skydiving instructor who told one of his customers, while strapped tightly to her while skydiving, that she had nothing to worry about because he was gay. The customer told her boyfriend who was also skydiving with her and she also alleged Mr. Zarda had touched her inappropriately. The two customers complained to the employer, Altitude Express. Mr. Zarda was subsequently fired which he alleged was due to his sexual orientation. He sued claiming employment discrimination under Title VII and the District Court dismissed the case holding that sexual orientation discrimination was not protected under Title VII. The Second Circuit overturned the lower court’s decision and held that in fact, Title VII did protect employees from discrimination based upon their sexual orientation.
In the Bostock case, a Clayton County Georgia employee was fired he alleged due to his sexual orientation after he invited others to join his gay recreational softball league which led to his employer finding out about his sexual orientation. The 11th Circuit upheld the lower court’s dismissal of his case under Title VII holding that Title VII does not prohibit discrimination based upon sexual orientation.
The Supreme Court’s ruling today also included a case based upon gender identity discrimination, R.G. & G.R. Harris Funeral Homes v. EEOC. In this case, Anthony Stevens worked at a funeral home in Michigan and alleged he was fired after he told the owners of the funeral home that he was transitioning from male to female and wanted to be called Aimee Stevens and would be now wearing female attire at work. The funeral home owners, who were extremely religious, fired Aimee alleging that allowing her to wear women’s clothing violated the funeral home dress code and violated “God’s commands.” The EEOC commenced a lawsuit on Aimee’s behalf alleging discrimination based on transgender status and her refusal to conform to sex-based stereotypes. The trial court dismissed the allegations of transgender under Title VII holding “transgender . . . status is not currently a protected class under Title VII.” The trial court allowed the other claims to proceed holding that Stephens was discriminated against because the funeral home objected to her appearance and behavior as departing from sex stereotypes. The Sixth Circuit reversed the trial court and granted summary judgment to the EEOC on the discrimination claim.
The Supreme Court today held that the word “sex” in Title VII includes protection for employees from discrimination based upon sexual orientation and gender identity. Although many states already had sexual orientation and gender identity as protected classes under their state employment discrimination laws, the federal courts were split on whether sexual orientation and gender identity were protected classes under federal law, Title VII. Today, the Supreme Court definitively decided the issue that under federal law, Title VII protects employees from discrimination and harassment based upon both sexual orientation and gender identity.
Employers should now ensure that even if they are in a state in which state law does not include sexual orientation and gender identity as protected classes, that they revise their EEO and Anti-Harassment Policies to include both sexual orientation and gender identity as protected classes. HR should also reiterate in any EEO and anti-harassment training that now under federal law, employment discrimination and harassment based upon gender identity and sexual orientation are prohibited. Other important policies that employers should consider adding include a pronoun policy and bathroom protection policy for transgender employees. Employers should also conduct a review of their existing policies and practices to ensure compliance with today’s Supreme Court’s landmark ruling.